Legal

Napster End User License Agreement

Last Updated: June 2017

Introduction

This Napster End User License Agreement (Agreement) is a legally binding and valid agreement between you (“you” and “your”) and either Napster Luxembourg S.à r.l. (if you live in Europe), Napster do Brasil Licenciamento de Música Ltda. (if you live in Brazil), Napster K.K. (if you live in Japan), or Rhapsody International Inc. (if you live anywhere else), (collectively, and with their affiliates, subsidiaries, and assigns, “Napster,” “our,” “us,” or “we”). Napster provides various products and services, including mobile and web-based applications for electronically distributing, downloading, and streaming music (collectively, the “Services”). This Agreement governs your use of the mobile, web, and/or desktop applications and widgets distributed by Napster, which allow access to the Services (collectively, the “Application”) by means of a Device (a “Device” includes but is not limited to desktop and laptop computers, tablets, mobile phones, wearables, smart speakers, smart televisions, home audio devices, or any other device capable of Internet connection).

By installing or using the Application, or through your express agreement when requested, you accept this Agreement and you acknowledge and agree that you have read it, that you understand it, and that you consent to be bound by its terms and conditions. You accept that you have the authority and the capacity to be bound by the terms of this Agreement. In addition to the Services, the Application is integrated with third-party products and services, and these third-party beneficiaries may enforce the provisions in this Agreement.

Please note that special terms may apply to you depending on the territory where you live; these special terms are found at the end of this document.

Use or installation of the Application constitutes acceptance of this Agreement, or you may accept it explicitly. If you do not agree to the terms of this Agreement, or if you fail to abide by its terms, you are not licensed to use the Application, and you must not use the Application or install it on any Devices. As a condition to your use of the Application and the Services, you hereby acknowledge that you comply and will continue to comply with all laws, rules, and regulations applicable to your use in the territory where you use them, and that you reside in a territory where the Services are available.

Grant of License

Napster hereby grants to you a limited, non-exclusive, revocable, non-transferable license to use the Application solely for your own personal, noncommercial use, on Devices under your ownership and control, not for use in the operation of a business or for the benefit or any other person or entity, and subject to the terms of this Agreement.

The Application is licensed, not sold. You do not own the Application in any form, and Napster retains ownership of the Application even after installation on your Device. The rights that are licensed to you under this Agreement are limited to those expressly granted in this Agreement, and Napster reserves all other rights.

You may install and use one copy of the Application on each Device. The number of Devices on which you may install and use the Application is determined by the tier of the Services to which you have subscribed. You may not exceed the number of Devices authorized by your tier of the Services or circumvent the technical limitations in the Application that limit the number of Devices on which you may install the Application.

As a condition of your license, you may not:

access any subscription-based features of the Application unless you have paid the applicable subscription fee and agreed to the
Napster Terms of Use
or are accessing the features as specifically permitted during a free trial period;

copy, modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive the source code of, tamper with, obtain or use a “dev key” for, or create derivative works based upon the Application, including the content made available on the Services (the “Content”), or any portion thereof;

sell, rent, lease, sub-lease, sub-license, transfer, distribute, broadcast, display or otherwise assign any rights to the Application, the Services, or the Content to any third party;

remove any proprietary notices or labels on the Application;

work around any technical limitations or access control measures in the Application;

use any automated means (including scripts, bots, spiders, scrapers, viruses, worms, crawlers or similar software) to access or use the Application;

use the Application for reasons other than your personal, non-commercial purposes, including without limitation the excessive and/or repeated playing of Content (for the apparent purpose of increasing royalties paid or ratings as applied to such Content);

copy, modify, erase, or damage any information contained on computer servers used or controlled by Napster or any third party used in connection with the Application or the Services;

use the Application to violate any law or legal right of any third party, including any publicity, privacy, or intellectual property rights;

take any action that is harassing, defamatory, abusive, tortious, threatening, obscene, harmful or otherwise objectionable;

use any data mining, robots, or similar data gathering and or extraction tools in connection with the Application;

use the Application or the Services to obtain personal information about any Application user, or to obtain a list of Application users;

use the Application or the Services to post or transmit any unsolicited advertising or promotional materials;

access the Application or the Services in order to create, contribute to, or improve a competing service;

interrupt, destroy or limit the functionality of the Application or the Services; or

impersonate or misrepresent your affiliation with any person or entity in regard to the Application or the Services.

Violation of any of the restrictions or obligations in this Agreement may result in the termination of your license to use the Application. Napster reserves any and all rights or remedies that may be available in the event of your breach of this Agreement.

Updates and Access

Napster may issue updates to the Application from time to time. You agree that the Application may automatically download and install such updates, and you agree that this Agreement, as amended from time to time, will apply to all such updated versions of the Application, unless such updated versions are released with a separate license agreement. It is your responsibility to ensure you have the latest update of the Application.

The Application will operate only on those hardware and software platforms specified in the Application documentation. It is your responsibility to provide compatible platforms for the Application. Napster may add or remove support for specific platforms at any time with or without notice, and with or without a new update.

Napster may, in its sole discretion, change, suspend, remove, or disable access to the Application or the Services at any time with or without notice. Napster (and not any app store, device manufacturer, or operating system provider) will be solely responsible for support of, claims related to, and updates to the Application

Title to Intellectual Property

The Application (including all past and future iterations of it) is protected by intellectual property laws, including, without limitation, copyright, patent, trademark, trade secret, and industrial design law. Napster retains all title and ownership rights in the Application. Except as expressly stated in this Agreement, Napster does not grant any express or implied right or license to you under any patent, copyright, trademark, trade secret, or industrial design rights of Napster.

The Content served by Napster or third parties through the Application and the Services is the property of Napster, its licensors, or its partners. Title, ownership rights and intellectual property rights in and to such Content belong to Napster or these third parties. This Agreement gives you no ownership interest in the Content (including Content that is downloaded to your Device), and you may not infringe the intellectual property rights of others. You are solely responsible for the investigation, defense, settlement and discharge of any claim against you based on your use of the Application or Content.

Linked Services

The Application may make third-party web sites, web pages, products, services, and advertisements available to you via links (“Linked Services”), and these Linked Services may have their own applicable agreements or terms. Napster is not responsible or liable for the features or content of any Linked Services, and the links to them in the Application do not imply Napster’s endorsement of them. Your access to any of the Linked Services is entirely at your own risk, and you are solely responsible for any consequences of accessing any Linked Services, as well as for viewing and abiding by any applicable agreements or terms.

Beta Releases

From time to time, Napster may make available to you a version of the Application containing certain new and pre-released features, functionality, applications, or services ("Beta Releases"). Beta Releases may contain different, fewer, or more features than the current commercial release of the Application or any future release. Beta Releases are not intended for wide commercial release and may contain errors affecting their proper operation. You use Beta Releases at your own risk. Napster may change or discontinue Beta Releases at any time or choose to never make them commercially available.

Disclaimer of Warranty

TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS, AND NAPSTER, ITS CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, AND ITS PARTNERS, AS APPLICABLE (COLLECTIVELY, THE “NAPSTER ENTITIES”) EXPRESSLY DISCLAIM ANY WARRANTY OF ANY KIND FOR THE APPLICATION OR THE SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

USE OF THE APPLICATION AND THE SERVICES IS AT YOUR OWN RISK. THE NAPSTER ENTITIES MAKE NO WARRANTY THAT THE APPLICATION AND THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION AND THE SERVICES WILL BE COMPLETE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, RELIABLE, ACCURATE, VIRUS-FREE, ERROR-FREE, OR THAT DEFECTS OF ANY KIND WILL BE CORRECTED. THE NAPSTER ENTITIES MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE APPLICATION, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION, AND NO ORAL OR WRITTEN ADVICE, RELEASE OR INFORMATION PROVIDED BY THE NAPSTER ENTITIES TO YOU SHALL CREATE A WARRANTY.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISSATISFACTION WITH THE APPLICATION OR THE SERVICES IS TO UNINSTALL THE APPLICATION AND STOP USING IT.

Limitation of Liability

TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE NAPSTER ENTITIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AGENTS OR AFFILIATES SHALL NOT BE LIABLE FOR PERSONAL INJURY, OR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, PECUNIARY LOSS, LOSS OF INFORMATION OR DATA, BUSINESS OR PERSONAL USE INTERRUPTION, OR ANY OTHER COMMERCIAL OR PERSONAL DAMAGE OR LOSS), ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE APPLICATION AND THE SERVICES, HOWEVER CAUSED, WHTHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF NAPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE NAPSTER ENTITIES BE LIABLE FOR ANY CLAIMS OR DAMAGES IN EXCESS OF THE AMOUNT YOU PAID TO NAPSTER DURING THE PREVIOUS 12 MONTHS (YOU WILL BE RESPONSIBLE FOR ANY EXPENSES YOU MAY INCUR IN RELATION TO RECEIVING THIS AMOUNT). THE FOREGOING LIMITATIONS SHALL APPLY AT ALL TIMES, REGARDLESS OF WHETHER THE SPECIFIED REMEDY FAILS OR IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.

Indemnity

You will indemnify, hold harmless, and defend Napster and its parents, shareholders, subsidiaries, affiliates, officers, directors, employees, service providers, distributors, licensors, agents, successors, assigns and other representatives, from all third-party claims, judgments, liabilities, expenses, costs or related penalties, including, without limitation, reasonable attorneys’ fees, arising out of, resulting from or in any way connected to your breach of this Agreement or your illegal acts or omissions.

Termination

Napster, at its sole discretion, at any time, with or without notice, and for any or no reason, may terminate this Agreement or suspend your access to the Application. Upon termination of this Agreement, you will immediately cease use of the Application and will delete all copies of the Application you have made.

Modification

Napster, at its sole discretion, may change the terms of this Agreement from time to time, without notice. The most current version of this Agreement will be effective immediately upon release, and will supersede all previous versions. You accept any and all modifications by continuing to use the Application.

Assignment

You may not assign this Agreement, any portion of it or any of your rights or obligations under the Agreement to any third party, whether by direct transfer, sub-license or any other means. Any purported assignment of this Agreement or any portion of it, by you, shall be null and void. To the extent permitted by applicable law, Napster may, at its sole discretion and without any recourse to you, freely assign this Agreement, any portion of it or any of its rights or obligations under it.

Applicable Law, Dispute Resolution, and Arbitration

Applicable Law

Unless otherwise specified in Section 15 below (as in the case of Brazilian or European consumers), this Agreement shall be construed in accordance with and governed by the internal laws of the State of Washington, United States of America, without regard to choice or conflicts of laws principles (the “Applicable Law”). This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

Final and Binding Arbitration

TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND NAPSTER HEREBY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL IN ANY APPLICABLE JURISDICTION. Any and all disputes, controversies or claims (collectively, “Claims”) arising under or relating to the breach, interpretation or application of the terms of this Agreement or any extension or modification of the Agreement, regardless of the applicable legal theory, shall be exclusively resolved by a single arbitrator through final, binding and confidential arbitration, as follows:

If you are a resident of the United States of America, any arbitration between you and Napster will be administered by the American Arbitration Association under its then-current Commercial Arbitration Rules (available here), as modified by this Agreement;

If you are a resident of a member state of the European Union, the provisions of this Section 13(b) through (h) do not apply to you – please see Section 15;

If you are a resident of any other territory, any arbitration between you and Napster will be administered by the International Chamber of Commerce, under its then-current Rules of Arbitration (available
here
), as modified by this Agreement.

Any arbitrator so appointed shall adhere to the Applicable Law and applicable rules of arbitration (the “Arbitration Rules”), and shall be empowered to (i) determine the appropriate venue for the arbitration or the method for conducting the arbitral process (such as by written submissions or telephonic hearings) in lieu of the parties meeting at a physical venue, upon considering the territorial location of the parties, (ii) award actual money damages (but not punitive damages) against the party found to have violated this Agreement, and (iii) grant in his or her award, injunctive or other types of equitable relief, to enforce specific performance of this Agreement, and to prevent any continuing or further violation of its terms. Except as otherwise provided in this Agreement, the arbitrator's decision will be final. Judgment upon the award rendered in such arbitration may be entered in any court having jurisdiction, provided that any award may be challenged if the arbitrator fails to follow the Applicable Law.

Arbitration Process

If your Claim is for US$10,000 or less, Napster agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the applicable Arbitration Rules. If your Claim exceeds US$10,000, the Arbitration Rules will determine the right to a hearing.

Arbitration Fees and Awards

The cost of any arbitration shall be borne equally by the parties, except that each party shall be responsible for its own attorneys’ fees. If the arbitrator rules in your favor, then Napster will pay you the greater of (i) the amount of the award stated by the arbitrator, (ii) the amount of Napster’s most recent written settlement offer, or (iii) US$1,000.

Class Action Waiver

You and Napster agree that each may only bring a Claim against the other in an individual capacity, and not as a plaintiff or class member in any purported class action or other representative proceeding. Further, unless you and Napster agree otherwise, no judge or arbitrator may consolidate more than one person's Claims or otherwise preside over any form of representative or class proceeding.

Prior Negotiations

Before initiating any arbitration or proceeding, you and Napster may agree to first attempt to negotiate any Claim informally for at least 30 days; provided, however, the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Napster’s intellectual property rights; and (ii) any Claims related to allegations of theft, piracy or unauthorized use of the Application. A party who intends to seek such negotiation must first send to the other, by certified mail or commercial delivery service, a written Notice of Dispute (“Notice”). The address to send a Notice to Napster is Rhapsody International Inc., Legal Department, 701 Fifth Ave. Suite 3100, Seattle, WA 98104 USA. The Notice must (i) describe the nature and basis of the Claim, and (ii) set forth the specific relief sought.

Exceptions to Arbitration

Notwithstanding anything to the contrary in this section, either party may, in lieu of arbitration, assert an individual action in small claims court for Claims that are within the scope of such courts' jurisdiction. As some jurisdictions do not allow for some of the dispute resolution provisions set forth in this Agreement, some of these provisions may not apply to you.

Severability

With the exception of the sub-sections 13(a) and (b), if any portion of this Section 13 is found to be illegal or unenforceable or excessively broad as to duration, geographical scope or activity, then that portion shall be construed so that the remaining portions of this section shall not be affected, but shall remain in full force and effect, and any such illegal or overly broad portion shall be deemed, without further action on the part of any party, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable. If nonetheless, the portion of this section is considered to be illegal or unenforceable, that portion will be severed and the remainder of this section will be given full force and effect. If either or both of sub-sections 13(a) or (b) are found to be illegal or unenforceable, then any such Claim will be exclusively decided by a court of competent jurisdiction within Seattle, State of Washington, USA, and you and Napster agree to submit to the venue, personal and subject-matter jurisdiction of that court.

General

No delay or failure to take action under this Agreement shall constitute any waiver by Napster of any provision of this Agreement. Any waiver by Napster of any of the provisions of this Agreement must be express and in writing, and will not mean that Napster will waive any other provision in another situation.

If any portion of this Agreement is held to be invalid or unenforceable, or excessively broad as to duration, geographical scope or activity, then that portion shall be construed so that the remaining portions of this Agreement shall not be affected, but shall remain in full force and effect, and any such illegal or overly broad portion shall be deemed, without further action on the part of any party, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable in the applicable jurisdiction. If nonetheless, a portion of this Agreement is considered to be unenforceable by a court of competent jurisdiction, then the remainder of the Agreement shall continue in full force and effect.

This Agreement may be available in various translations, but to the extent allowable by applicable law, the English version controls. If another translation applies to you, you acknowledge that this Agreement was written in English and translated into other languages, and translation errors may exist.

Territory-Specific Information

Additional information or resources apply in certain territories. Please read the following information for the territory in which you live:

Brazil

This Agreement shall be governed by the laws of Federative Republic of Brazil, without regard to or application of any choice of law or conflict of laws provisions. You consent to the exclusive jurisdiction of the courts of the city of São Paulo, state of São Paulo. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

Brazilian law shall apply to your use of the Services, including specific provisions about privacy. In order to comply with the applicable law, Napster will store data related to your activities when using the Services, such as access logs, for the term established by Law 12.965/2014 or other updated regulation that replaces or modifies it.

Once you stop using the Services, you may request the deletion of all data related to your use of the Services – this, however, shall not prevent Napster from complying with the storage obligations set forth by the aforementioned Law 12.965/2014 or other updated regulation that replaces or modifies it.

Europe

Applicable Law and Jurisdiction

The choice of law provision of Section 13(a) shall not deprive you of the protection afforded to you by the law of the country of your habitual residence.

If you are a resident of a member state of the European Union, the provisions of Section 13(b) through (h) do not apply in respect of the applicable jurisdiction. You may bring proceedings against Napster either in the courts of the member state in which Napster is domiciled or, regardless of the domicile of Napster, in the courts for the place where you are domiciled.

Acceptance

Notwithstanding anything to the contrary in this Agreement, in order for you to be bound by this Agreement or modifications or updates to this Agreement, you will be required to explicitly accept and agree to the new version of this Agreement.

Germany

Applicable Law and Jurisdiction

Napster is not willing and not obligated to participate in dispute resolution procedures before bodies responsible for out-of-court settlement of consumer disputes.

Warranty

To the extent the Services are defective, you are entitled to your statutory rights under German law, notwithstanding anything to the contrary in the Agreement.

Limitation of Liability

Notwithstanding anything to the contrary in the Agreement, Napster or its legal representatives or agents may be liable without limitation for:

damages resulting from injury to life, body, or health that are based on an intentional or negligent breach of duty by Napster or by Napster´s legal representatives or by Napster´s vicarious agents;

any other damages which are based on an intentional or grossly negligent breach of duty and fraudulent intent from Napster or Napster´s legal representatives or Napster´s vicarious agents;

damages under Germany’s Product Liability Act insofar as Napster has assumed a guarantee for the quality;

damages that have arisen due to slightly negligent violation of essential contractual obligations by Napster or one of Napster’s vicarious agents in connection with the use of the Service only to the extent of the typical contractual foreseeable damage;

Otherwise, the limitations of Napster’s liability described in this Agreement apply.

USA

The following are some of the laws, rules, regulations and sanctions that apply to this Agreement, the Services and the Application: (a) the U.S. Department of Commerce’s Export Administration Regulations (“EAR”), which governs the export and re-export of software; (b) the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), which administers and enforces economic and trade sanctions; and (c) the U.S. Department of States’ International Traffic in Arms Regulations (“ITAR”), which implements the Arms Control Act regarding the export and temporary import of defense articles and services.

The Application may not be exported or re-exported (a) into countries under U.S. embargo, or (b) to any person on the U.S. Treasury Department’s Specially Designated Nationals and Blocked Persons List, or (c) to any person on the U.S. Department of Commerce Denied Persons List or Entity List, or (d) to any person on the U.S Department of State’s List of Statutorily Debarred Parties.

You agree that in the use of the Application and the Services, you are in compliance with, and shall at all times comply with the requirements of EAR, OFAC and ITAR, and all other applicable export and re-export related laws, rules, regulations and sanctions. You warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.